 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Mrozek v. Intra Financial Corp.6/9/2005
by public policy. "The equitable doctrine of judicial estoppel, as traditionally applied in this state, is intended 'to protect against a litigant playing 'fast and loose with the courts' by asserting inconsistent positions.'" State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996) (citations omitted). Judicial estoppel precludes a party from asserting one position in a legal proceeding and then subsequently asserting an inconsistent position. Id. Judicial estoppel may be invoked where "(1) the later position is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt its position." Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 111-12, 595 N.W.2d 392 (1999).
We decline to apply judicial estoppel here. It is not clear Mrozek is trying to "play fast and loose" with the judicial system; as we noted earlier, a criminal defendant has many potential reasons to enter into a plea agreement, some of which would not be inconsistent with alleging Mallery negligently represented Mrozek. For example, Mrozek may have pled to the charges in order to accept a lesser penalty than the maximum exposure she would have had if convicted after a trial.
Mallery also argues Mrozek's claims should be barred on public policy grounds because her convictions bring her within the doctrine of in pari delicto, under which doctrine it has been said that "no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act." Evans v. Cameron, 121 Wis. 2d 421, 427, 360 N.W.2d 25 (1985) (citations omitted). In Evans, we upheld the dismissal of a complaint for the negligent provision of legal services, where the complainant committed perjury at a bankruptcy hearing, allegedly upon receiving advice from her attorney to do so. Id. at 424-25. We stated, "A court should not encourage others to commit illegal acts upon their lawyer's advice by allowing the perpetrators to believe that a suit against the attorney will allow them to obtain relief from any damage they might suffer if caught." Id. at 428.
We decline to bar Mrozek's malpractice claim under this doctrine. In Evans, the act of perjury was so clearly wrongful that even without the advice of attorneys, Evans would have understood her actions were illegal. Id. at 427-28. We also note that Mallery's position before the Securities Commissioner was that Mrozek's actions were not illegal. Furthermore, as we explained in our discussion of guilty pleas and issue preclusion, supra, , her admission of guilt for plea agreement purposes is not conclusively determinative of the facts.
Because we decide that issue preclusion does not apply to a guilty plea and that neither judicial estoppel nor public policy bars a claim for the negligent provision of legal services, we conclude that the circuit court erred in granting summary judgment to Mallery.
C. PMI's Claims
PMI contends that it suffered damages from its loss of ownership of the motel property and from its outlays for attorney's fees and costs in the bankruptcy and related matters. Mallery argues that claim preclusion applies to PMI's negligence claim against the firm because the trustee in PMI's bankruptcy could have pursued PMI's claim, but it did not. Mallery contends that the order closing the bankruptcy operates as a final judgment on PMI's claim.
Claim preclusion prevents relitigation of the same claim when: (1) there is an identity of parties or their privies in the prior lawsuit; (2) there is an identity of claims for relief that were brought, or should have been brought; and (3) a final judgment on the merit
Page 1 2 3 4 5 6 7 8 9 10 11 12 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|